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Mr. X, Central Kerala v. State Of Kerala

Kerala High Court

Mar 11, 2009

Judgment

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Comprehensive Summary of the Opinion (Revision under Sections 397 & 401 Cr.P.C.)

Factual and Procedural Background

The petition is a Revision under Section 397 read with Section 401 Cr.P.C. filed by the 1st accused (A1), a retired Rear Admiral (referred to in the opinion as Mr. X), challenging an order of the Chief Judicial Magistrate at Thiruvananthapuram that took cognizance and issued process against accused Nos. 1 and 2 in C.C. No. 268 of 2008. The parties' real names have been disguised in the opinion.

The prosecution's narrative is that on 27-6-2008 A1 (age 65) invited A2 (Miss A, age 21) into Room No. 108 of the Government Guest House, Thycaud. At about 12:20 p.m. they were found engaging in sexual intercourse after a tip-off by the Guest House Administrator. The police, led by the Circle Inspector of Museum Police Station and accompanied by women police constables, allegedly observed by peeping through a partly open window, apprehended both persons. Currency notes totalling Rs. 10,000 and two pornographic magazines were seized from beneath a pillow.

The F.I.R. was registered (originally) for offences under Sections 3 and 4 of the Immoral Traffic (Prevention) Act, 1956 ("the Act"). The final police report, however, is said to have stated offences under Sections 4 and 5. The learned Chief Judicial Magistrate took cognizance of offences under Sections 3 and 4 on 9-12-2008 (the opinion records this date) and issued summons/process to both accused. The 1st accused challenged the Magistrate's order by way of this Revision.

Legal Issues Presented

Whether Section 3 of the Act (punishment for keeping or allowing premises to be used as a brothel) applies where a room was allegedly used once for sexual activity.
Whether Section 4 of the Act (punishment for living on the earnings of prostitution) is attracted on the facts alleged by the prosecution.
Whether Section 5 of the Act (procuring, inducing or taking a person for the sake of prostitution) applies to the facts of this case.
Whether the Magistrate erred in taking cognizance and issuing process for offences under Sections 3 and 4 despite factual and evidentiary inconsistencies (including inconsistency between F.I.R., final report and medical/chemical test results).
Whether the impugned order should be set aside in view of the legal characterisation of the facts and the negative chemical/forensic test results.

Arguments of the Parties

Prosecution's Case

A1 invited A2 into Room No. 108 of a Government Guest House and they were found indulging in illicit sexual intercourse on 27-6-2008.
Money (Rs. 10,000) and two pornographic magazines were seized from beneath a pillow in the room.
The prosecution's stated position (as summarised by the court) was that A1 induced and took A2 for the sake of prostitution and that A2 offered her body for sexual intercourse for hire; on that basis offences under Sections 4 and 5 (and at some stages Section 3) of the Act were prosecuted.

Revision Petitioner (A1) — Contentions Summarised in the Opinion

A1 challenged the Magistrate's order taking cognizance and issuing process (the Revision is brought under Sections 397 & 401 Cr.P.C.).
A1 contended (as recited by the court) that he was booked by the police at the behest of certain persons inimical to him for political reasons and that his reputation was being tarnished.
The petitioner relied on forensic/medical evidence: although A2 told the attending doctor she had sexual intercourse once with A1, chemical analysis of vaginal smears, swabs, pubic hair and panties showed negative results for semen/spermatozoa; the absence of biological evidence was relied upon to question the veracity of the prosecution case and to probabilise the contention of false booking.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Krishnamurthy v. Public Prosecutor, 1967 Crl. L.J. 544 (S.C.)	Authority for the proposition that a place used only once for sexual exploitation does not meet the statutory definition of a "brothel" under Sec. 2(a) / Sec. 3.	The court relied on this authority to conclude that Section 3 (punishment for keeping or allowing premises to be used as a brothel) does not apply where the room was allegedly used only once for sexual activity; therefore Sec. 3 is inapplicable on the facts of this case.
Radhakrishnan v. State of Kerala, 2008 (2) KLT 521	Proposition that "prostitution" under Sec. 2(f) involves sexual exploitation for a commercial purpose — it must have the character of a business or be carried on for profit.	The court invoked this precedent to explain that for Section 4 (living on earnings of prostitution) to apply, there must be material showing commercial/professional prostitution and that A2 was a "prostitute" and A1 was living on her earnings; in the absence of such material, Sec. 4 could not be invoked.

Court's Reasoning and Analysis

The court examined the charging pattern, statutory definitions, evidentiary material and prior authorities in reaching its decision. The reasoning proceeded in the following steps as recorded in the opinion:

Procedural inconsistency noted: The F.I.R. was stated to be for offences under Sections 3 and 4, the final police report allegedly stated offences under Sections 4 and 5, while the Magistrate took cognizance under Sections 3 and 4. The court observed this mismatch in the record (para 4 of the opinion).
Section 3 (brothel) analysis: The court explained the statutory definition of "brothel" (Sec. 2(a)) and cited Krishnamurthy to hold that a room that was used only once for sexual exploitation does not qualify as a "brothel." Therefore, on the prosecution's own case (single use of Room No. 108), Section 3 could not be attracted (paras 5–7).
Section 4 (living on earnings of prostitution) analysis: The court set out Section 4 and emphasised that it applies only where a person knowingly lives on the earnings of prostitution. The court referred to the statutory definition of "prostitution" (Sec. 2(f)) and Radhakrishnan to stress that prostitution entails sexual exploitation for a commercial purpose — i.e., a business or profit-making activity. The court found no material to show that A2 was a prostitute within the statute's meaning or that A1 was living on her earnings; accordingly the invocation of Section 4 was described as "wholly misconceived" (paras 8–11, 21).
Section 5 (procuring/inducing for prostitution) analysis: The court examined Section 5 and explained that its offences require procuring, inducing or taking a person for the sake of prostitution. The court concluded that the facts as alleged did not satisfy the statutory threshold because there was no demonstration that the acts were for prostitution in the statutory/commercial sense (paras 22–31, 32).
Forensic and evidentiary point: The court placed weight on the medical and chemical-test evidence. While A2 reportedly told the examining doctor that she had sexual intercourse with A1 once, chemical analysis and microscopic examination of vaginal smears, vaginal swabs, pubic hair and panties showed negative results for semen/spermatozoa. The court treated these negative forensic results as seriously undermining the prosecution's factual assertions and as probabilising the petitioner's claim that he was booked for ulterior/political reasons (para 12/33).
Conclusion of analysis: Taking the legal characterisation (Sec. 3 not attracted; Sec. 4 and 5 not made out on available materials) together with the forensic inconsistency and mismatch in the charging documents, the court held that the Magistrate's order taking cognizance and issuing process overlooked vital aspects and therefore could not be sustained (para 33).

Holding and Implications

Primary Holding: The Revision is allowed and the order dated 9-12-2008 taking cognizance of offences under the Immoral Traffic (Prevention) Act and issuing process against the revision petitioner is set aside (paras 33–34).

Direct consequences and implications:

The Magistrate's order of cognizance and issuance of process in respect of the accused (as recorded in the impugned order dated 9-12-2008) has been quashed and set aside.
The court's decision directly affects the parties by vacating the process that had been issued; the opinion does not record any further directions or remand to re-investigate.
The opinion does not purport to lay down any new binding precedent beyond applying established authorities (Krishnamurthy and Radhakrishnan) and statutory interpretation to the facts; the court confined itself to the facts and concluded that statutory thresholds for Sections 3, 4 and 5 were not satisfied on the material before it.

No broader constitutional or systemic implications are articulated in the opinion; the court's order is a factual and legal determination limited to the present record.

Show all summary ...

1. In this Revision filed under Sec. 397 read with Sec. 401 Cr. P.C the 1st accused in Crime No. 227 of 2008 of Museum Police Station, Thiruvananthapuram registered for offences punishable under Sections 4 and 5 of the immoral Traffic (Prevention) Act, 1956(“the Act” for short) challenges the order dated 9-2-2009 passed by the Chief Judicial Magistrate, Thiruvananthapuram, taking cognizance of the offences punishable under Sections 3 and 4 of the Act after assigning a number to the case No. C.C No. 268 of 2008 and issuing process against accused Nos. 1 and 2. To avoid embarrassment for the parties concerned their real names have been disguised in this order. The case of the prosecution can be summarised as follows

On 27-6-2008 the 1st accused (A1 for short) who is a retired Rear Admiral by name Mr. X, aged 65 years and hailing from Central Kerala, called Miss. A, the 2nd accused (A2 for short) aged 21 years, hailing from Chirayinkeezhu into his rented premises, namely, Room No. 108 of the Government Guest House, Thycaud. At about 12.20 p.m on that day A1 and A2 were found indulging in illicit sexual intercourse. On a tip off by the Administrator of the Guest House, the Circle Inspector of Police, Museum and his Police party consisting of women police constables proceeded to the Guest House and apprehended A1 and A2 after secretly peeping into Room No. 108 through the partly open window beside the balcony. Currency notes totalling to Rs. 10,000/- and two pornographic magazines were seizied from beneath the pillow in the said room. Since A1 induced and took A2 for the sake of prostitution and since A2 indulged in the act of offering her body for sexual intercourse for hire, both the accused persons have committed offences punishable under Sections 4 and 5 of the Act.

2. On 9-12-2008, the learned Chief Judicial Magistrate, Thiruvananthapuram took cognizance of offences punishable under Sections 3 and 4 of the Act and issued summons to both A1 and A2. Hence, this Revision.

3. I heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor.

4. While the F.I.R was registered for offences punishable under Sections 3 and 4 of the Act, the final report says that the accused persons committed offences punishable under Sections 4 and 5 of the Act. Cognizance has been taken by the Magistrate for offences punishable under Sections 3 and 4 of the Act

5. Sec. 3 of the Act has absolutely no application because even according to the prosecution, Room No. 108 of the Government Guest House was used only once for sexual exploitation and if so, such a place cannot be called a brothel. (See Krishnamnrthy v. Public Prosecutor, 1967 Crl. L.J 544 S.C). It is only if a person keeps a brothel to allows the premises under his control to be used as a brothel that he commits an offence under Sec. 3 of the Act Sec. 2(a) defines a “brothel” as follows:—

“Brothel” includes any house, room, conveyance or place or any portion of any house, room, conveyance or place, which is used for purpose of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes”.

6. In the light of the interpretation placed by the Apex Court, the room in the Government Guest House will not answer the definition of “brothel” if it was used for sexual exploitation only once.

7. Sub sections 1 and 2 of Sec. 3 of the said Act reads as follows:—

“3. Punishment for keeping a brothel or allowing premises to be used as a brothel - (1 Any person who keeps or manages, or acts or assists in the keeping or management of, a brother shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also I with fine which may extend to two thousand rupees.

(2) Any person who-

(a) being the tenant, lessee, occupier or person in charge of any premises, uses or knowingly allows any other person to use, such premises or any part thereof as a brothel, or

(b) being the owner, lessor or landlord of any premises or the agent of such owner, the lessor or landlord, lets the same or any part thereof with the knowledge that the same or nay part thereof is intended to be used as a brother, or is wilfully a party to the use of such premises or any part thereof as a brothel,

shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and alsowithfine”.

8. Sec. 4 of the Act will be attracted only if a person knowingly lives on the earnings of “prostitution”. The said Section reads as follows:—

“4. Punishment for living on the earning of prostitution (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both land where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years.

(2) Where any person over the age of eighteen years is proved-

(a) to be living with, or to be habitually in the company of, a prostitute or

(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or

It shall be presumed until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1)”

9. The activity carried on in a given premises will amount to “prostitution” within the meaning of Sec. 2(f) of the Act only if sexual abuse or exploitation of a person is done for a commercial purpose. For the activity to become one with a commercial purpose, it should partake the character of a business or one carried on for profit (Vide Radhakrishnan v. State of Kerala, 2008 (2) KLT 521.) In the absence of any material to indicate that the 2nd accused is a “prostitute” within the meaning of Sec. 2(f) of the Act and A1 is living on the earnings of prostitution by A2, invocation of Sec. 4 of the Act is also wholly misconceived.

10. Sec. 5 of the Act also cannot obviously apply to the case on hand because the act of procuring, inducing or taking a person should be for the sake of prostitution. Sub-section (1) of Sec. 5 of the Act reads as follows—

“5. Procuring, inducing or taking person for the sake of prostitution - (1) Any person who—

a) procures or attempts to procure a person whether with or without his consent for the purpose of prostitution; or

b) induces a person to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent, a brothel; or

c) takes or attempts to take a person or causes a person to be taken, from one place to another with a view to his carrying on, or being brought up to carry on prostitution; or

d) causes or induces a person to carry on prostitution;

shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and nor more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years;

Provided that if the person in respect of whom an offence committed under this sub-section—

(i) is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and

(ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years”.

11. In order to become prostitution there should be the offering of her body by a female for promiscuous sexual intercourse for hire. The word “promiscuous” means indiscriminate which means that a woman or girl offering her body, should do so for hire to anyone who desires her body for sexual intercourse. In other words, such a female has no choice regarding the persons who are to have sexual intercourse with her. To put it differently, such a female should be available to any person who desires to have sexual intercourse with her (See Radhakrishnan v. State of Kerala (supra). The learned Magistrate has taken cognizance of the offences punishable under Secs. 3 and 4 of the Act which are not at all attracted in this case. Even Sec. 5 of the Act is not attracted for the reasons already mentioned.

12. There is yet another reason as to why the impugned order should not be allowed to stand. Soon after the arrest of A1 and A2 from Room No. 108 of Government Guest House, Thycaud by the Circle Inspector of Police, Museum Police Station, both of them were subjected to medical examination. In the statement given by A2 to Dr. A. Sunitha, Asst Surgeon, Government Women and Children Hospital, Thycaud A2 has stated that she had sexual intercourse with A1 once. The Circle Inspector who allegedly detected the offence claims to have caught both A1 and A2 in flagrante delicto i.e in the very act of indulging in the illicit sexual intercourse. If A1 already had sexual intercourse with A2 as was stated by A2 to the doctor, then in the vaginal smears, vaginal swabs, public hair and panties of A2 there should have been semen or spermatozoa. But strangely enough, the certificate of chemical analysis shows that semen and spermatozoa were not detected in the vaginal smears, vaginal swabs, pubic hair and panties of A2. All the three chemical tests well as microscopic examination conducted on those materials showed the results as “negative”. The above discussion would probabilise the revision petitioner's contention that he was booked by the police at the behest of certain persons who are on inimical terms with him for political and he is a respectable persons whose image and reputation were being tarnished. The cognizance taken and the process issued by the learned Magistrate overlooking the above vital aspects of the matter cannot be sustained. The order dated 9-12-2008 taking cognizance of the aforesaid offences and issuing process against the revision petitioner is set aside.

13. In the result, this Revision is allowed as above.